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Your WeMo Smart Home Can Spy On Your Android Smartphone

Midway through its latest brief arguing why needs to unlock the iPhone used by one of the San Bernardino shooters, the U.S. Justice Dept. cites a surprising case: U.S. v. Burr, the 1807 prosecution of Aaron Burr for treason.

According to the lawyers at Justice, none other than Chief Justice John Marshall of the U.S. Supreme Court concluded in that case that Burr’s clerk, identified only as Willie, must decrypt a coded letter Burr sent to one of his accomplices.

Not so, says Apple: Marshall only ordered Willie to say whether he understood the contents of the letter. And even that would be heading down the slippery slope toward self-incrimination, Burr’s lawyers argued at the time. Though the initial question “may be an innocent one,” one lawyer said, “yet the counsel for the prosecution might go on gradually from one question to another, until he at last obtained matter enough to criminate him.”

(Michael Short/Bloomberg)

The dispute over what exactly Marshall ruled in the Burr case illustrates the confusion over the state of constitutional law when it comes to technology like encryption. And the slippery-slope arguments Burr’s lawyers made to try and keep Willie from testifying neatly correspond to Apple’s arguments in the San Bernardino case, where it says forcing its engineers to unlock a single phone would open the door to government surveillance on everybody. In its most recent brief, Apple cites Justice Louis Brandeis, who in a 1928 wiretapping case warned against the “dangers to liberty” that “lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”

(Library of Congress)

Apple’s lawyers will make their case in person on Tuesday before U.S. Magistrate Judge Sheri Pym in California. And its constitutional defenses are no more clear than when Burr was fighting for his life 200 years ago. (He was acquitted.) The Fifth Amendment isn’t in play in Apple’s case – the phone belonged to the shooter’s employer, and the shooter is dead – but Apple says forcing its engineers to write code disabling the encryption would violated the First Amendment and its due process rights.

Behind all this is the rapid adoption of so-called “end-to-end” encryption that makes it virtually impossible for anyone to decode communications without the key used to encrypt them. Police and government spy agencies have never liked this stuff, and National Security Agency Director Bobby Ray Inman even tried to pass a law banning publicly available encryption in the 1970s. The only people “who were buying encryption to use were the drug dealers,” Inman said then.

Congress refused to pass Inman's law, and courts have struggled with the tension between private communications and public safety since the days of Aaron Burr. Can the government prohibit the sale of, say, invisible ink two people can use to hide their communications? Probably not. Can it prohibit a company from selling millions of devices preloaded with the electronic equivalent? Not so clear.

“It’s an area with a lot of nuance in the Constitution,” said David O’Brien, senior researcher at Harvard’s Berkman Center for Internet and Society. Article I of the Constitution clearly gives Congress broad authority to “provide for the common defense and general welfare of the United States,” he said. Whether that can be stretched to include a ban on encryption, or requirements to write the code in a way that police armed with a warrant can decode it, has never been fully tested in court.